We have spoken of women before . . .
In 2005-06, I served as President of the Women’s Bar Association of DC, the oldest continuous women’s bar in the US. We courageously led an “Initiative” on women in the law. The title was carefully chosen to achieve our goal, and it connotes volumes:
The entire DC legal community stepped up to the Initiative – 220 men and women – from all sectors of practice. We got them to exchange problems and diagnose causes over 16 hours of structured dialogue. We took it in stages — reducing ignorance, talking frankly, examining current measures to advance women, and admitting that those measures are not enough. Inclusive community discussions would be of even greater value today than in 2005.
Then we wrote up a host of measures to improve the advancement and retention of women in the law. What we wrote was what the DC legal community discerned, deplored, and developed in those 16 hours. You should read it. WBA-DC Initiative Report 2006. (See also WBA-DC reports 2007-10.) What was left is the doing.
I then placed with the New York Times – with great luck and the wonderful journalist Tim O’Brien – the framework for what became the Times’ extensive Sunday Lead Feature article on this subject – page one, above the centerfold. Up The Down Staircase (NYT Mar 19, 2006). I referred him to key leaders to interview, he found more, and the Times sent photographers around to shoot us on location. It was a big thing. It was important. And Tim O’Brien got it right.
Tim asked me this important question during the series of calls we had (to paraphrase): “So the profession of law, charged with doing justice and upholding the laws against discrimination, is discriminating? ” My answer: “No. Law firms are way beyond discrimination — this is about advancement and retention. Problems with advancement and retention are grounded in biases, not discrimination.” This is bigger, squishier, and harder to attack. This is about changing how the profession grows and matures its future leaders – how it gains the will to keep the 50% of law grads who are women, a population bleeding out the talent base when they quit. And of course the obstacles are compounded for women of color and others who don’t seem to look like the classic male U.S. lawyer of the past.
I set my alarm for 5 am that Sunday to hit the drug store for my copy of the Sunday Times. We had set a path forward for open dialogue and productive change – and the nation knew now.
We are repeating ourselves still . . .
Eleven years later, are we still arguing about this?
NITA takes action through even-handed coaching of every lawyer who wishes to improve trial skills. We routinely have many women along with men in our trial advocacy sessions. We see no distinction between the genders in the trial skills they bring with them, or the great gains they make with us. They exhibit ambitious, use drive, and blossom under the individual attention and coaching at NITA.
But courtrooms remain skewed. In the August 8 New York Times Op-Ed piece, Females Can Talk, Too, recently retired Judge Shira K. Scheindlin (SDNY) related a courtroom scene, still so common, of a lead trial lawyer (most often male) turning to his co-counsel (a woman lawyer) to learn how to answer the judge’s question. She knows the case and its nuances. The Judge’s judicial group recently tallied how many New York courtroom appearances in a 4-month period featured women as the primary speaker in open court. In the 2800 court appearances noted, only 20% of those for cases between private parties featured women lawyers. Among all the cases (thus including public sector and public interest practices), only 25% were led by women. See also this Law360 follow-up article.
The readers’ comments to Judge Scheindlin’s piece included many reflecting a rush to judgment – even intemperate — with facile “values”-based assertions. Among others, those that attack the talent and capabilities of women as a gender to practice trial law are wrong, as I have said above. Those that ponder the societal pressures on family raise a real issue that our DC Initiative pondered too; and yet the balance between satisfaction at one’s career weighed against the satisfaction at having singular childcare responsibilities is often unfairly skewed because of negative stereotypes and forestalled opportunities at work. See The Difference Difference Makes (Deborah L. Rhode for the ABA 2003). There is no reason why females as opposed to males should be predominantly downsizing their career ambition – including women trial lawyers.
The call to action . . .
Let’s stop doubting . We have lot of work already written on diversity in the law and women’s advancement. I have cited just some of the older articles in this post in order to make that point – this is not new knowledge.
Let’s stop attacking the messengers. Learn, share, integrate it into your reality, pass it on, and continuously pursue new better ways.
In offices and bar groups around the country, take up the problem of how the profession represses our promise, capacity, reach and influence by losing diverse talent.
Recognize that this will take time and real work. Our efforts must not cease if numbers don’t seem to change in a New York minute (or to modernize it, in an Online essay). Rather, we must work together to discern the implicit bias, resist its influence, and uproot its patterns, firm-by-firm.
Everyone likes a list; here is my start —
If you have trouble imagining initiatives, let me know. For example, put women in court no matter how much you yearn to stand up yourself. Be there with her – so she too has someone to consult during her argument and to pull her documents. So she can emerge proud that she did well AND that you saw her do so!
While you are taking that course of action —
Your implicit biases are your own personal set, and you won’t ever be rid of them. But you can learn to recognize the “bias moments” that seem to cue a harmful bias in you. If you can see that, you can refuse to be sullied by it. I know; I work every day to find and counteract mine.
Tell me what you are doing. This is core to NITA’s mission to extend justice to all populations, through training of a profession across all sectors. By teaching the art of advocacy to every type of advocate.
Karen M. Lockwood, Esq.
President and Executive Director
National Institute for Trial Advocacy
written by NITA guest blogger David Mann
Everyone knows the best story wins. But what exactly constitutes a good story? We all know it’s important to have a good guy and bad guy, and we know it’s important to frame things in light of common sense violations of rules or principles. We know we need an interesting protagonist who is easy to identify with. But we also know we can do all that and still have a story fall flat and consequently lose an otherwise solid case.
So what’s the secret ingredient to making a story come to life for the jury and leading them to take action? For winning cases in which I’ve constructed the opening, we’ve grabbed the jury immediately with vivid visual language that is active rather than passive. Here’s what I mean. Consider the wording in this sentence from an opening:
“Paramedic Miller’s lack of attention on the scene of Plaintiff Dan Gerson’s cardiac arrest was in violation of the laws of the commonwealth of Virginia. His actions were the cause of Mr. Gerson’s death, and the evidence will show that.”
Information is provided and a strong point is being made. But it’s not visual and it’s not active. It’s impossible for a jury to imagine the scene from that description, and the whole thing is in the passive verb tense, making it seem distant and unimportant. It has a certain legal-sounding formality to it that is at odds with the general culture’s insistence on approachable, plain language. Further complicating things is the fact that the story is displaced into the future, when we’ll presumably hear and see evidence that will tell the story. While it is of course necessary to use legal references and refer to upcoming evidence, don’t do it at the expense of moving the story forward. Establish an active, vivid story before asking the jury to focus on the evidence you’ll be providing and the legal conclusions you will be drawing – all at a later date. The later addition of evidence should serve to flesh out the images they’ve already begun to form in their mind from your well-crafted opening story. You’ve got one shot to do it. If you don’t succeed in planting that story in their imaginations, you might never get them invested.
The description of the paramedic and Mr. Gerson above is the type of sentence that makes up the majority of the first drafts of opening statements I see. We then work the story through several revisions to make it come to life. Look at the difference in this way of depicting the same story:
“Dan Gerson collapses in his chair and his niece calls 911. Within two minutes the police arrive and begin administering CPR. Six minutes later, the paramedics arrive but Paramedic Miller orders the police to stop CPR. Because of the Defendant’s actions, Dan Gerson is dead.”
The second approach is a story. It is told in action language a jury can visualize. The first passage describes the events from a distance: Defendant’s “lack of attention…was a violation of…” and his “actions were the cause of…” The second passage tells it in the present, one image at a time: Plaintiff “collapses,” Police “arrive,” and then Defendant “orders the police to stop.” All actions, all parts of a story that is unfolding in our minds as we hear it.
These are subtle yet powerful ways of making a story come to life. So remember:
For lawyers who have spent their professional lifetime working with careful, formal legal language, this may seem counter-intuitive. But it’s critical for engaging the ordinary people in the jury. When the story comes to life, they’ll respond by taking action.
About the Author
David Mann specializes in persuasive presentation skills and storytelling. A theater artist for over three decades, David now trains attorneys and business professionals how to use performance and storytelling techniques to win. He has taught with NITA for the past five years and has served as Program Director for NITA’s Persuasive Power in the Courtroom communication programs since 2015.
written by NITA guest blogger, the Honorable Christina Habas
As trial lawyers, we are masters of our cases. We know the facts of the case like the back of our hands; the law comes easily to us to know what we must prove; and finally, we know how to communicate with power. What we often forget is that our biggest task is to convey our client’s STORY in a way that can be easily UNDERSTOOD by our listener. We also want our listener to REMEMBER what we tell them.
The best method of communicating concepts to be UNDERSTOOD and REMEMBERED is story. We tell ourselves stories all of the time, even when we are asleep, our brain is telling itself stories. As human beings, we are incapable of putting together large amounts of data in an understandable way unless we have the framework of story. And, as trial lawyers, we often must explain something to jurors who may have no personal experience or history to give them an understanding. If a juror has never before met a person who is paralyzed, they will have no concept of how that person copes with the world unless we find a way to connect with their own life experiences, making our client’s case more real.
We also know that if there is not a cohesive and coherent story in a case, the jurors will likely tell themselves their own story as they hear about a case. If my passion is to ride bicycles, I may listen to a case about a bicycle accident from the perspective of the cyclist – on the other hand, if I have unpleasant experiences as a car driver with bicyclists, I will likely listen with that perspective. This means that the listener will fill in any gaps in a story with their own story that fits into their own personal experiences and philosophy. This is how verdicts are sometimes perplexing, because the jurors have made a decision based upon the story they tell themselves, and that story is not necessarily in lock-step with the evidence presented at trial.
Storytelling is also effective because of the way we are hard-wired: when we listen to a story, our brains are transported into a calm, receptive state. We know, as the listener to a story, that we will not be called upon to actually participate in the process, and we have “mirror neurons” that fire the portion of our brain that would fire if we were actually participating in the action, as we listen to a description of the action.
Finally, if the listener can actually VISUALIZE your case in their own mind, you have a much better chance that the listener will not only understand what they are listening to, but also remember what they heard. This is the way a good trial lawyer will arm jurors so that the jury will reach the verdict that supports the lawyer’s client’s version of the case. It will ingrain the action in a way that makes the juror unlikely to be swayed away from that vision of the case.
In the courtroom, you can do all the right stuff—tell a meaningful story of your client’s case, show compelling evidence, demonstrate courtesy to opposing counsel and witnesses, follow the rules of the court—and yet an individual juror will sometimes observe or fixate on something so random, so unconnected to the case, that you would have to be Caesar’s Soothsayer to anticipate it. Existing outside a lawyer’s control, jurors can be a real source of anxiety—and yet, they are but one piece of the psychological morass inside a courtroom. It’s not just the jurors you have to think about, says psychologist Melissa M. Gomez. It’s also opposing counsel, the judge, and the witnesses, all bringing their own unique perspectives and life experiences with them and affecting the atmosphere of your trial. In her book, Jury Trials Outside In, Dr. Gomez posits these outside dimensions bear an often overlooked impact on how you communicate and behave in the courtroom—and teaches, from a psychological perspective, what you can do about it. Jury Trials Outside In doesn’t just ask fascinating questions. It answers them, too.
How did you first meet “Auntie NITA”?
I had written my book and was discussing finding a publisher with a client, who happened to be involved with NITA. He connected me to the NITA publishing department, and voilà!
This brings up an interesting point: despite your years of experience as a jury and trial consultant, you’re not actually a lawyer. How did you become interested in the law and make it the focus of your life’s work?
Alas, the law is not the focus on my life’s work. Psychology and what makes people learn, perceive, decide, and react in a particular way to a particular situation is my life’s work. The jury trial is a fascinating place where these elements of psychology apply across all the humans involved (the jurors, witnesses, lawyers, judge, public opinion, etc.).
Without giving away any identifiable details, what are some of the most interesting situations you’ve dealt with as a trial consultant?
I think what is most interesting about my job comes down to a simple concept: People are people. In my job as a jury expert, I have worked with lawyers, television stars, CEOs, billionaires, people in poverty, doctors, felons, nurses, politicians, engineers, truck drivers, scientists, . . . you name it.
Jury trials cause stress to everyone, whether they are the jurors, the lawyers, the witnesses, or the judge. The results of a jury trial often change lives. People react in different ways, but everyone feels it. We are all human beings. And I have liked just about every person I have met—regardless of who they are and what their job title is.
How did you come up with the idea to write your book, Jury Trials Outside In?
It started off as writing down my stories from the courtroom, and then, as the pile of my stories grew, I saw themes emerge that I wanted to connect to basic concepts of psychology, sociology, etc. It just flowed from there.
What is your writing process like?
Airplanes. I click away on airplanes. I usually just let words and ideas stream out onto the keyboard, and then I go back and read what I have written. I make the sentences tighter. I do some research on the idea that is developing and then add the results of that research into the text. Then I do it again on the next flight with the next set of ideas.
I then piece it all together like a puzzle and comb it through a few times. By the time anyone sees it, I have gone over it at least five or six times.
What is the most important personal attribute you bring to your work?
An ability to see outside of my own perspective, to find connections between concepts, and to narrow complex information into its basic elements.
What bores you?
If you could buy anything and price was no object, what would you buy?
A piece of art work by Picasso.
What is your favorite breakfast?
A banana with almond butter.
Besides your family, who in your life has known you the longest?
My graduate school advisor and professor from the University of Pennsylvania. She now does contract work for me when I conduct mock trials. I trust her completely.
What was your favorite book as a child?
Artie the Smartie. It was a story of a little fish that wanted to make a big splash.
If you came with a warning label, what would it say?
I found this question hilarious, so I put it out to friends and clients on my Facebook feed. Here are the responses.
My favorite is the one from Alan Feldman, a client of mine: “Warning: Disregard advice at you (or your client’s) own risk!”
Coffee or tea?
Cats or dogs?
Dogs with silly names. Mine is named Figaro so we can sing the song when we call him.
Classical or modern?
iPhone or Android?
Sweet or salty?
Why choose? I like a combination of the two.
Spring ahead or fall back?
Neither. I am philosophically opposed to Daylight Savings Time.
And finally, what is your motto?
If it scares the crap out of you, it is probably worth doing.
Enjoy this interview? Find more of our Asked and Answered interviews with NITA personalities here on The Legal Advocate.
written by Mark Caldwell NITA’s Director of Resources
Remember how you saw the world before you went to law school? That view was far different from your view of the world today. Sometime in your first or second year of law school you began to think and speak as a lawyer. You ceased to see the world in multi-hues and it became black and white. This starkness allowed you to apply facts to the law and reach a legal conclusion. Think about your frame of mind when you first hear about a case – before you perform a legal analysis of the case and begin structuring your potential claims, defenses and motions. This is when you hear your client’s pure story of the events that occurred in a persuasive form. You are either persuaded to take up the client’s cause by that story, or you reject it because you are not persuaded.
Our training and experience in legal analysis is essential to building or defending a case. In getting ready for trial this process often hinders our ability to communicate persuasively and making a case memorable to judges, juries, and others we need to persuade. What we need to do as lawyers is to convert our legal analysis back to its purist form of story. It needs to have a clear beginning, middle, and ending. Parties and witnesses, including experts, need to be introduced as characters which illustrate a central conflict and offers a fair solution.
We sometime confuse case story with other advocacy concepts. Your case story is not just a theme – such as “A man’s word is his bond.” Too often we select a theme that resonates but fails to present the facts in a persuasive fashion. A case story is not the legal theory. For example, a child is neglected or dependent if: the child lacks proper care, through the actions or omissions of the parent. This may hint at a story, but it is not a very good one. Likewise, a case story is not just a tag line – “This is a story of a promise; a promise made and a promise broken.” Instead, think of your case story in the same way that historian Ian Toll describes writing about history as an “episodic narrative, picking key episodes to write about that, in their composite, provide an accurate portrait of what happened, without bogging down in too much minutiae….”
In crafting your own case story it may be helpful to think in the terms taught to fledgling authors. You can translate common components of good story writing to trial. Your case theme is akin to the Premise Line of a story. A Premise Line tells the listener, “What is your case about?” When properly conceived, your premise expresses your whole story in one or two neat sentences. Let me give you an example from the movies – A treasure-hunting archeologist races over the globe to find the legendary Lost Ark of the Covenant before Hitler’s minions can acquire and use it to supernaturally power the Nazi army. It is your “elevator speech” that defines your protagonist (your client), shows the antagonist (the opposing party), offers a sense of setting, conflict, and stakes, and hints how the action plays out. It is not what some think of as the “grabber” that starts your opening statement.
Next comes the Designing Principle or what lawyers may think of as the theme. This is what organizes your story as a whole and makes it hang together instead of a lose series of facts. Your Designing Principle suggests how and where you will begin your story – is it a chronology or a topic driven revelation of the facts that complete the legal elements.
Every story, including trial stories, has a Central Conflict that shows the harm done to your client. It also reveals the remedy or equitable solution that will make things fair and right.
Each case has parties and witnesses. These are the Characters who populate your case story. Some will be fully fleshed out individuals who you spend time accrediting while others will be flat characters who serve a purpose but do not need a full development to be credible. Here is a flat character example – the police officer who first arrived on the scene of a crime but did not conduct the full investigation. He is important to the story but not someone who defines the story.
Finally, you must understand and develop your Plot, or the factual theory of your case. These are the facts that fill in the elements to prove you have met the burden of the proof. Your organic plot must show that each event is causally connected; that each event must be essential (not facts that clutter with useless information); that is proportionate in its length and pacing; and has a sequence that has a unity and totality of effect. Your plot structure gives you the map on how you call witnesses, introduce exhibits, and have the story play out in a persuasive manner.
Changing your thinking from black and white legal theorist to storyteller brings color back to your cases, it makes the facts more memorable, provides a reason to feel good about the decision, and persuades in the way that maintains attention – just as story has done throughout history.